Author Archives: acluaz

Guerra-Castaneda v. United States of America

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Guerra-Castaneda v. United States of America, No. 1:22-cv-10711 (filed D. Mass. May 10, 2022) 

On May 10, 2022, the ACLU of New Hampshire along with Preti Flaherty LLP, filed this lawsuit on behalf of Plaintiff. Plaintiff sought damages based on an unlawful deportation by the Department of Homeland Security and Immigration and Customs Enforcement in September 2019. Plaintiff was deported despite two federal court orders to keep him in the United States while his case for asylum was pending.

After Plaintiff was deported, he was detained in a prison in El Salvador for 297 days where he was tortured, experienced inhumane conditions, and endured physical and emotional trauma. Defendants filed a motion to dismiss Plaintiff’s claims. On February 16, 2023, the district court denied Defendants’ motion and the case will proceed.

Documents:

Counsel: ACLU of New Hampshire, Preti Flaherty Beliveau & Pachios PLLP

Contact: SangYeob Kim, ACLU of New Hampshire, SangYeob@aclu-nh.org.

Bautista v. Mayorkas

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Bautista v. Mayorkas, No. 3:22-cv-1185 (S.D. Cal., filed Dec. 8, 2022)

Plaintiff, Mr. Bautista, filed a complaint against the Department of Homeland Security (DHS) and Customs and Border Protection (CBP) seeking the return of his vehicle. Plaintiff alleges violations of the Fourth, Fifth, and Fourteenth Amendments.

On November 4, 2021, Plaintiff’s wife, who is the registered owner of the vehicle, met a friend in Tijuana, Mexico to give her a ride to her job in San Diego. While there, the wife loaned her car to her friend while the wife went to the store. Without the wife’s knowledge, her friend picked up two people who did not have legal status in the United States and concealed them in the trunk. When the wife and friend were stopped at the San Ysidro checkpoint, the wife was made aware of the two individuals. The wife was released without criminal charge because her friend was operating the vehicle when it was seized.

That same day, CBP seized the vehicle. The wife received a Notice of Seizure on November 9, 2021, indicating that the CBP was commencing forfeiture action against the vehicle and provided guidance on how to proceed. On November 19, 2021, the wife filed a petition for return with CBP. Following receipt of notice of seizure, Plaintiff and his wife both filed petitions for return of the seized vehicle with CBP. CBP did not return the vehicle.

On August 12, 2022, Plaintiff filed a complaint with the Southern District of California. On September 21, 2022, Plaintiff filed an ex parte motion for preliminary injunction enjoining Defendants from disposing of his 2021 Nissan Sentra. After full briefing, on October 11, 2022, the court denied the ex parte motion for preliminary injunction as moot because Defendants declared they would hold onto the vehicle until judgment is entered in the case. Subsequently, Defendant filed a motion to dismiss for lack of subject matter jurisdiction because the Civil Asset Forfeiture Act of 2000 divests the court of jurisdiction. The district court granted Defendants’ motion, finding it lacked jurisdiction over the claimant’s challenge to merits of agency’s determination. The Court also denied Plaintiff’s request for leave to file an amended complaint on December 8, 2022.

Documents:

Counsel: Jason E. Ankeny, Jason E. Ankeny P.S.; Kirsten Zittlau, Zittlau Law

K.O. and E.O. Jr., v. United States

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K.O. and E.O. Jr., v. United States, No. 4:20-cv-12015 (D. Mass., filed Nov. 9, 2020)

Plaintiffs nine-year-old K.O. and her older brother, seventeen-year-old E.O. Jr., were forcibly separated by CBP agents from their mother upon entry to the United States, during the Trump administration’s “Zero Tolerance Policy.” Plaintiffs brought a class action lawsuit against the Department of Homeland Security, including Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), and the Department of Health and Human Services (HHS), among other federal agencies. The Plaintiffs allege claims under the Federal Tort Claims Act, asserting common law claims for intentional infliction of emotional distress, negligent infliction of emotional distress, false imprisonment, false arrest, assault and battery, negligent supervision, tortious interference with parent-child relationship, and loss of consortium.

On May 19, 2018, plaintiffs K.O. and E.O., along with their mother, entered the U.S. at the southern border to seek asylum from violence and persecution in Guatemala. They were apprehended by a Customs and Border Protection (CBP) agent and forcibly separated from their mother. The mother was never charged with a crime. CBP agents also called the father and told him his children were in custody, separate from their mother, and would be placed in the custody of the Office of Refugee Resettlement (ORR).

As the father began the ORR reunification process, the children were reunited and placed back into an ICE facility where they were detained in separate cells that faced each other. They spent two days there and were not allowed to speak with each other. They only had access to thermal blankets. Plaintiffs allege that there was no supervision, no support for children as young as two or three years of age, and the guards physically and verbally abused the children. After two days, ICE agents told the children their mother had been deported. The children were then transferred to ORR facilities in Michigan and were once again separated from each other. One child was placed in an ORR foster care home and the other was placed in an ORR group home. The children were eventually reunited with their father on June 19, 2018. Meanwhile, the mother remained detained in Texas and was unable to contact her husband. After she passed her credible fear interview, she was released on June 28, 2018. The children were separated from their father for 31 days, and their mother for 38 days.

Similarly, Plaintiff C.J., was eleven years old when CBP separated him from his father after travelling to the United States to seek asylum from persecution in Guatemala. They were separated for a total of 36 days. In addition to the trauma from the forcible separation, C.J. was assaulted by another child while he was detained in an ORR facility. 

Plaintiffs seek damages and to establish a fund for the mental health treatment of all class members that were forcibly separated from their parents.  

Plaintiffs filed their complaint on November 9, 2020. On February 28, 2022, Defendants filed a motion to transfer the case to Western District of Texas or in the alternative dismiss for lack of subject matter jurisdiction. The district court held that change of venue was not warranted and denied the motion to transfer. The court also granted the motion to dismiss in part and denied it in part. All claims brought by the parents in their personal capacities were dismissed. Any claims of negligent supervision or negligence in causing the family separation were dismissed. All other claims remain.

Plaintiffs filed an amended complaint on April 11, 2022. On May 10, 2022, Defendants filed a motion to transfer or alternatively a motion to dismiss the amended complaint. On January 9, 2023, the court reiterated its decision denying the transfer and granting and denying in part the motion to dismiss.

Documents:

Counsel: Todd & Weld LLP, Demissie & Church, The Law Offices of Jeff Goldman, Nixon Peabody LLP, Lawyers for Civil Rights

Contact:  Iván Espinoza-Madrigal, Lawyers for Civil Rights, iespinoza@lawyersforcivilrights.org

ACLU and 137 organizations send letter to CBP Commissioner urging CBP not to detain pregnant, postpartum, and nursing people

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Following a February 2020 incident where a pregnant woman was forced to give birth in a California Border Patrol station and then forced to return to the Border Patrol station for postpartum detention after a short trip to the hospital, the ACLU and Jewish Family Service filed a complaint with the DHS Office of the Inspector General (OIG). OIG subsequently investigated and issued a report on the incident, along with recommendations to improve CBP’s processes relating to childbirth. On November 23, 2021, CBP issued its current policy, “Policy Statement and Required Actions Regarding Pregnant, Postpartum, Nursing Individuals, and Infants in Custody.” 

In its October 20, 2022 letter, the ACLU, Jewish Family Services of San Diego, the UCLA Center for Immigration Law and Policy, along with 82 advocacy organizations and 52 medical professionals, urged the Commissioner to expand the current CBP policy to include the following: (1) limit the time people who are pregnant, postpartum, and/or nursing are detained in CBP custody to no more than 12 hours from the initial apprehension, and (2) ensure that people who are pregnant, postpartum, and/or nursing, along with their families, are not transferred back to CBP detention for any reason following discharge from any offsite hospital.

Counsel: Shaw Drake, ACLU; Jewish Family Services; and Monika Langarica, UCLA Center for Immigration Law and Policy

Contact: Monika Langarica | UCLA Center for Immigration Law and Policy | langarica@law.ucla.edu

Additional Links:

Send a message to CBP today demanding that pregnant, postpartum, and nursing persons and infants must be released as soon as possible: Uphold the reproductive rights and health of migrants | American Civil Liberties Union (aclu.org)

ACLU New Mexico and ACLU Texas Issue Letter Urging Independent Investigations and Transparency of CBP’s Vehicle Pursuit Policy and Border Patrol’s Deadly Pursuit of a Vehicle in New Mexico

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On August 25, 2021, the ACLU of New Mexico and the ACLU of Texas filed a letter with the CBP Acting Commissioner urging CBP to ensure independent investigations of an August 3, 2021 deadly vehicle pursuit by Border Patrol. Border Patrol’s vehicle pursuit resulted in two deaths and the hospitalization of eight other individuals. The letter also requested the public release of CBP’s current written vehicle pursuit policy, all training materials, and any other policy related to the August incident. Finally, the letter recommended that the Department of Homeland Security’s Office of Inspector General review CBP’s written policy and its implementation.

On January 11, 2023, CBP released an updated Emergency Driving and Vehicular Pursuits Directive that aligned CBP’s policy with those best practices of other law enforcement agencies in the United States. The updated policy will take effect May 2023.

Related Links:

P.J.E.S. v. Wolf and J.B.B.C. v. Wolf

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P.J.E.S. v. Wolf, No. 1:20-cv-02245 (D.D.C., filed Aug. 14, 2020)
J.B.B.C. v. Wolf, No. 1:20-cv-01509 (D.D.C., filed June 9, 2020)

A recent series of cases have challenged the government’s invocation of rarely-used public health laws to restrict immigration by unaccompanied children and asylum seekers.

On March 20, 2020, President Trump announced that the Centers for Disease Control and Prevention (CDC) would issue an order “to suspend the introduction of all individuals seeking to enter the U.S. without proper travel documentation” across the northern and southern borders. Would-be border crossers were to be “immediately return[ed]” to their country of origin “without delay.” To justify the order, the Administration invoked 42 U.S.C. § 265, a rarely-used provision dating back to 1893, which gives federal public-health authorities the ability to “prohibit . . . the introduction of persons or property” from designated places where “by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States.” This restriction has come to be known as “Title 42.”

On March 20, 2020, CDC issued an interim final rule and an order directing the “immediate suspension of the introduction” of certain persons, including those seeking to enter the United States at ports of entry “who do not have proper travel documents,” “whose entry is otherwise contrary to law,” and “apprehended near the border seeking to unlawfully enter the United States.” Reports indicate that although CDC objected to the order, saying that there was no valid public-health justification for it, White House officials overrode those objections. Though CDC initially limited the order to thirty days, it has since extended the order indefinitely. On October 13, CDC issued final rules concerning its regulatory authority under § 265. CDC then issued a revised order pursuant to those rules. In February 2021, the Biden administration called for a review of the CDC order to determine if it was still needed or if modifications should be made, but on August 2, 2021, CDC issued a new order once again indefinitely extending application of Title 42.

The CDC order and regulations apply to unaccompanied children (who are entitled to special safeguards under the Trafficking Victims Protection Reauthorization Act (TVPRA)) and people seeking asylum, withholding of removal, or protection under the Convention Against Torture. The ACLU, along with a number of ally organizations, have filed a series of lawsuits on behalf of unaccompanied children challenging their expulsion under the CDC’s directives, the two most significant of which are discussed below.

J.B.B.C.

J.B.B.C. v. Wolf challenged the unlawful expulsion of a sixteen-year-old Honduran boy pursuant to Title 42. J.B.B.C. was being held in a hotel awaiting expulsion when the ACLU and others filed a complaint and request for a temporary restraining order. Based on J.B.B.C.’s arguments that the Title 42 Process was not authorized by § 265, and that the CDC order conflicted with various Immigration and Nationality Act (INA) provisions, Judge Carl Nichols issued a preliminary injunction barring Defendants from expelling J.B.B.C. Defendants then voluntarily took J.B.B.C. out of the Title 42 Process and transferred him to Office of Refugee Resettlement (ORR) custody.

Another child similarly subject to expulsion under Title 42, E.Y., was later amended into the case. Hours after he was added, Defendants similarly took him out of the Title 42 Process. Plaintiffs subsequently voluntarily dismissed J.B.B.C.

P.J.E.S.

On August 14, 2020, the ACLU Immigrants’ Rights Project, the ACLU of Texas, the Texas Civil Rights Project, Oxfam America, and the ACLU Foundation of the District of Columbia filed P.J.E.S. v. Wolf, a nationwide class action challenging the application of the Title 42 Process to unaccompanied children. On August 20, 2020, Plaintiffs moved for a classwide preliminary injunction. The district court judge then referred the case to a magistrate judge, who issued a report recommending that Plaintiffs’ motion for class certification be provisionally granted and that the motion for classwide preliminary injunction be granted. The magistrate judge concluded that Title 42 does not authorize summary expulsions and that if it were in fact read to permit expulsion of unaccompanied minors, it would conflict with statutory rights granted to them under the TVPRA and the INA.

On November 18, 2020, the court adopted the report, provisionally granting Plaintiffs’ motion to certify class and motion for preliminary injunction. Defendants moved for reconsideration on their request to stay the preliminary injunction and appealed the order to the DC Circuit. On December 3, the court denied Defendants’ motion for reconsideration.

On December 12, 2020, Defendants filed a notice advising the court that approximately 34 class members had been expelled from the United States, in contravention of the court’s injunction. These 34 were in addition to another 32 unaccompanied children expelled the same day the court granted the preliminary injunction.

On January 29, 2021, a motions panel of the D.C. Circuit stayed the P.J.E.S. preliminary injunction pending appeal and expedited the appeal.

In February 2021, CDC published a Notice of Temporary Exception from Expulsion of Unaccompanied Noncitizen Children under Title 42, and on July 16, 2021, CDC issued an order formally excepting unaccompanied minors from Title 42.  

On March 2, 2021, the Court of Appeals issued an order holding Defendants’ appeal of the preliminary injunction in abeyance pending further order of the court. The district court likewise granted the parties’ joint motion to hold the case in abeyance. On October 17, 2022, the D.C. Circuit issued an order terminating the abeyance, vacating the preliminary injunction, and remanded the case to the district court for a determination of whether all or part of the case has become moot.

Note: Two other cases involving the treatment of unaccompanied minors under Title 42 include G.Y.J.P. v. Wolf, No. 1:20-cv-01511 (D.D.C., filed June 9, 2020) and Texas Civil Rights Project v. Wolf, No. 1:20-cv-02035 (D.D.C., filed July 24, 2020).

Documents:

J.B.B.C. v. Wolf:

P.J.E.S. v. Wolf:

Counsel: ACLU Foundation of Texas; ACLU Foundation Immigrants’ Rights Project; Texas Civil Rights Project; Center for Gender & Refugee Studies; Oxfam America; ACLU Foundation of the District of Columbia

Contact: Stephen Kang, ACLU Immigrants’ Rights Project | skang@aclu.org

Press: